The news that the CIA has fired an employee for leaking classified information to a reporter, and may be considering criminal charges, has some on the left all atwitter. Doesn’t that make Bush (and, by extension, his supporters) hypocritical, because Bush hs been accused of releasing classified information, either directly or through intermediaries? Shouldn’t Bush be fired, impeached, or arrested?
In a word, no. And to toss around such ideas is to betray a gross ignorance of how the Constitution works.
The power to classify and un-classify material is pretty much the sole province of the Executive Branch of our federal government. The military, the intelligence agencies, the State Department, the Department of Energy, the Justice Department, all have their own reasons and methods for keeping information they deem sensitive out of public hands.
And it’s apparently readily forgotten that the Executive Branch of government derives all its power from the President, and pretty much every action they take is done at his direction, directly or indirectly, and in furtherance of his agenda.
In essence, the President IS the Executive Branch, as far as the Constitution is concerned. Through Constitutional mandate, law, and custom, that tremendous power over an entire branch of our government is diffused through lesser officials, offices, and the like, but in theory the president can personally assume almost any power and any authority delegated to any part of the Executive Branch, simply by reclaiming that delegated power.
In fact, I can only think of two exceptions off the top of my head, and both are in the Constitution: In Article I, Section 3, the Vice President is named as the President of the Senate, and in the 25th Amendment, Section 4, the Vice President and the Cabinet are granted the power to declare the President “unable to discharge the powers and duties of his office” and make the Vice-President the Acting President. The President cannot preside over the Senate, nor can he involuntarily remove himself from power.
But back to my point: certain government officials have the power to classify and declassify information. And the whole reason they have that power is that is has been delegated to them by the President.
In the aftermath of Watergate, President Richard Nixon gave a series of interviews to David Frost in which he spelled out his rationale for his actions in the scandal the brought down his administration. Nixon can be considered in executive power; he served two terms as Vice President, and one and a half as President, and is often considered one of the most intelligent men to ever hold the Oval Office. He justified his secret measures, using the official arms of the government for his own political ends, with a singularly concise phrase:
“Well, when the president does it that means that it is not illegal.”
Like all good deceptions, it’s based on truth. In certain areas, it is literally true: if the President does something, then by definition it is not illegal, even though it would be against the law for other officials to do so. This is not because the action is in and of itself illegal, but reserved solely for the President and those he should designate to possess it. In short, in nearly every case, if it is legal for an executive branch official to do something, it is also legal for the President to do it as well.
Classifying and declassifying information is one such power.
The motivations, the politics, the circumstances of a disclosure of specific information is certainly fodder for a fair debate. But anyone who challenges the fundamental legality is only professing their own ignorance.